Kelly v The State of Western Australia
[2011] WASCA 273
•23 DECEMBER 2011
KELLY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 273
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 273 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:130/2011 | 18 NOVEMBER 2011 | |
| Coram: | McLURE P MAZZA JA | 23/12/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAMERON FRANCIS KELLY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Whether sentencing judge took into account guilty plea and injuries suffered by appellant Whether manifestly excessive Turns on own facts |
Legislation: | Criminal Code (WA), s 401(2)(a) |
Case References: | Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Nannup v The State of Western Australia [2011] WASCA 257 Vagh v The State of Western Australia [2007] WASCA 17 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KELLY -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 273 CORAM : McLURE P
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BRADDOCK DCJ
File No : IND 671 of 2011
Catchwords:
Criminal law - Appeal against sentence - Whether sentencing judge took into account guilty plea and injuries suffered by appellant - Whether manifestly excessive - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 401(2)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Nannup v The State of Western Australia [2011] WASCA 257
Vagh v The State of Western Australia [2007] WASCA 17
(Page 3)
1 McLURE P: This is an application for leave to appeal against sentence. The appellant was convicted on his fast-track plea of guilty of one count of aggravated burglary contrary to s 401(2)(a) of the Criminal Code (WA). On 4 August 2011, the appellant was sentenced by Braddock DCJ to 3 1/2 years' imprisonment for that offence.
2 The appellant, who is self-represented, relies on three grounds of appeal. They are that (1) the sentencing judge failed to take into account or failed to adequately take into account the appellant's plea of guilty; (2) the sentencing judge failed to take into account or failed to adequately take into account injuries sustained by the appellant; and (3) the sentence is manifestly excessive.
3 The facts are as follows. At about 11.45 am on 9 February 2011, the appellant entered the rear yard of a residential property in Canning Vale and gained entry to the house by smashing the rear glass door. Once inside the house the appellant searched through numerous rooms and stole a laptop computer, jewellery and other property. Whilst the appellant was still in the house, the complainant returned home. She was confronted by the appellant who was holding a firearm (later found to be a replica) in both hands with his arms extended out in front of him. The appellant did not directly threaten the complainant with the firearm. Fearing for her safety, the complainant ran from the house and called the police.
4 The appellant was at the rear of the property when police arrived. When the appellant failed to respond to a police request to put the gun down, police fired at the appellant and he was hit by three bullets. Two entered and exited his left forearm and the third remains lodged in the appellant's left lateral abdominal wall close to his spine.
5 The appellant was aged 32 at the time of the offence. He described to the author of the pre-sentence report (PSR) a long history of poly-substance abuse including cannabis, heroin and an addiction to prescription medication. The interview for the PSR was prematurely terminated because of the appellant's aggression during the interview.
6 The appellant has an extensive criminal record in both New South Wales and Western Australia. His first conviction in Western Australia was in August 2002 for armed robbery, for which he was sentenced to 5 years' imprisonment. Whilst the appellant was on parole for the armed robbery offence, he reoffended by shooting a person, for which he was convicted of unlawful wounding. His other convictions in this State include the offences of carrying a controlled weapon, stealing and
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- multiple counts of burglary, three of which were in a dwelling. He also has multiple convictions in New South Wales for armed robbery.
7 This court can only intervene if the appellant establishes that the sentencing judge made a material express or implied error of fact or law in the exercise of the sentencing discretion.
8 There is no arguable basis for the appellant's claim that the sentencing judge failed to take into account either his plea of guilty or the injuries he sustained as a result of his criminal conduct. It is apparent from the reasons of the sentencing judge that both those matters were taken into account in the sentencing process. The complaint that the sentencing judge failed to 'adequately take into account' those matters does not give rise to an appealable error. That ground is in substance a challenge based on the weight given to those factors. Failure to give adequate weight to a relevant sentencing consideration only gives rise to an appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen (2000) 202 CLR 321, 330; Vagh v The State of Western Australia [2007] WASCA 17 [76]. There is no merit to a claim that the sentencing judge failed to exercise the discretion actually entrusted to the court.
9 That leaves the claim that the sentence is manifestly excessive. A claim of that nature depends upon establishing an implied error. For that purpose, regard is had to the maximum sentence for the crime, the seriousness of the circumstances of the offending, the standards of sentencing customarily observed and the personal circumstances of the offender. The maximum sentence for aggravated burglary is 20 years' imprisonment. As this court recently said in Nannup v The State of Western Australia [2011] WASCA 257 [68]:
The primary sentencing considerations in relation to aggravated burglary are personal and general deterrence, especially when the aggravated burglary was committed on residential premises. Ordinarily, a substantial penalty must be imposed. In recent years, the sentencing range for offences involving home burglary (whether committed with the intent to intimidate the occupants by threatening or assaulting them or committed 'merely' with the intent to steal) have been firmed up in recognition of the prevalence of these offences. General deterrence is just as important in the context of aggravated burglary as it is with armed robbery. See Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 [5] (Malcolm CJ), [133] (Anderson J), [168] (Miller J); Drake v The State of Western Australia [2006] WASCA 209 [60] - [62] (Roberts-Smith JA, Martin CJ agreeing); Moody-Jackamarra v The State of Western Australia [2007] WASCA 7 [14] (McLure JA, Steytler P agreeing); Nguyen v The State of
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- Western Australia [2007] WASCA 114 [12] - [14] (Steytler P, McLure JA & Miller AJA agreeing); Miller v The State of Western Australia [2009] WASCA 79 [38] (Owen JA, Buss & Miller JJA agreeing). See also Drury v The State of Western Australia [2010] WASCA 220; Young v The State of Western Australia [2011] WASCA 100.
10 Aggravated burglaries are committed in a very wide range of circumstances and the range of sentences customarily imposed reflects that fact. Having regard to the appellant's lengthy history of committing serious offences, it was appropriate in this case to give significant weight to the sentencing objectives of personal deterrence and protection of the public. When regard is had to all relevant sentencing considerations, including the mitigating factors, the sentence imposed is within the appropriate sentencing range.
11 As none of the grounds of appeal have a reasonable prospect of succeeding, leave to appeal should be refused and the appeal dismissed.
12 MAZZA JA: I agree with McLure P.
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